' JAWAD-UL-HASSAN, DISTRICT & SESSIONS JUDGE/MEMBER-III --- The appellant Amir Nadeem, Head Conclable of Police of Sialkot through this appeal under section 19 of PEEDA Pct of 2006 read with section 4 of the Punjab Service Tribunal Act, 1974 has called in question the order dated 12.2 2011, passed by respondent (I.G. Punjab) in the capacity of authority of revision, whereby the period of absence for one month and eighteen days was converted into the forfeiture of one year approved service.
2. Succinctly, the facts for the disposal of the appeal in hand are that the appellant while being attached with the Police Department as Head Constable performed his duties during his stay. He was posted at the District Police Lines, Sialkot. During this period he was proceeded against by the department under the provisions of the PEEDA Act, 2006 on account of being guilty of misconduct in accordance with report of Line Officer, Police Line as he absented himself from duty without prior permission or leave from the competent authority. He was transferred from Police Lines, Sialkot to Police Station Rangpura. In response to show-cause notice he was proceeded against ex parte as evident from order of Additional S.P. Sialkot. As a consequence thereof vide order dated 10.3.2010 passed by Additional S.P. Sialkot he was dismissed from service with immediate effect. However, the period of his absence from duty for one month and 18 days was treated as leave without pay.
The appellant filed a departmental appeal against his dismissal before the R.P.O, Gujranwala. Vide order dated 23.8.2010 the appellate authority converted the major penalty of dismissal from service into warning, reinstating the appellant in service from the date of dismissal. However the period for which he remained absent/out of service was treated as leave without pay. The appellant feeling aggrieved, by way of review/revision petition, approached the Inspector General of Police, Punjab, Lahore, assailing the order in respect of leave without pay. On his review/revision petition the I.G.
Punjab (Respondent) vide impugned order dated 12.2.2011 observed that the stance of the appellant was plausible but while saying so passed a fresh order to the effect that the period for which the appellant remained absent i.e. One month and 18 days (which has been assailed only and for said period) the I.G.P. Converted the penalty into forfeiture of one year approved service and period of five months and 13 days spent out of service was treated as leave of the kind &re. The appellant in appeal before this Tribunal challenged order of the I.G.P. Dated 12.2.2011. The appeal against this order was filed on 13.6.2011 beyond the prescribed time of limitation.
3. I have heard the arguments of the learned counsel for the appellant and the learned District Attorney on question of limitation as well as on merits. Before proceeding with the merits of the case I intend to ponder over the facts set out in the application under Sections 5 and 14 of the Limitation Act.
4. Learned counsel for the appellant stated that I.G.P/Authority to revise in complete negation of law on the subject and without issuance of show-cause notice enhanced the penalty from warning into forfeiture of one year approved service which violates the mandate of law as envisaged under sections 16 and 17 of the PEEDA Act, 2006 and in this respect heavily relied upon the judgment of the honourable Supreme Court of Pakistan in CP Nos. 1898, 1899 and 1900-L/2010, dated 25.4.2011 wherein it was observed that delay in filing of the appeal before this Tribunal can be condoned when the impugned order was passed without jurisdiction. In addition to his arguments it was stated on merits that under section 17 of the PEEDA Act, 2006 I.G.P. Was bound to issue a show- cause notice to the appellant. This failure on part of the authority resulted in the miscarriage of justice. According to the learned counsel for the appellant impugned order is void having no effect on the legal rights of the appellant.
5. Conversely, the learned District Attorney opposed the contentions of the learned counsel for the appellant and stated that impugned order was passed in terms of law on the subject. According to him no case is made out to condone the delay in filling of appeal as well as on merits.
6. Arguments were heard at good length, record perused.
7. In grounds of appeal it is specifically mentioned that the appellant was attached as Naib Court with the Court of Mr. Amir Sharif learned Civil Judge/Judicial Magistrate Daska. On 13.4.2011 he, was transferred from the court and posted at the Police Lines but no "Parwana" was issued or served upon him. He sought permission from the learned Civil Judge but he was not relieved from there. It is mentioned in the recital of the appeal that the said learned Civil Judge issued attendance certificate therefore, he was not absent. Be that as it may, the appellate authority vide order dated 23.8.2010 converted the penalty of his dismissal from service into "warning" and thereby he was reinstated in service from the date of dismissal. However, the period for his absence and out of service was treated as leave without pay. The segment of order regarding the absence period being treated as leave without pay is challenged in the revision. The respondent I.G. Punjab by way of impugned order dated 12.2.2001, in capacity of revision authority, has converted the minor penalty "warning" into major penalty of forfeiture of one year approved service. The impugned order was looked at during the course of arguments which does not show the issuance of any kind of mandatory show-cause notice to appellant or affording the opportunity of personal hearing of appellant on the subject.
8. The Honourable Supreme rood. Of Pakistan in case (2011 SCM R 1) Government of Pakistan through Director General, Ministry of Interior, Islamabad and others v. Farheen Arshad held at page 7 as follows:- "10. It is the inalienable right of every citizen to be treated in according with law as envisaged by Article 4 of the Constitution. It is the duty and obligation of the public functionaries to act within the four corners of the mandate of the Constitution and law. Even the Chief Executive of the Country is not above the Constitution and is bound to obey the command of the Constitution as envisaged under Article 5(2) of the pronouncements. See Ch. Zahur Ilahi's case PLD 1975 SC 383 and Zahid Akhter's case PLD 1955 530. The word law used in the Constitution has been interpreted to include all such principles as having the binding force on account of moral, customary or other sociological reasons. Late Hamood-ur-Rehman, J, defined the word law while interpreting Article 4 of the Constitution and the dictum laid down in Begum Agha Abdul Karim Shorish Kashmiri's case PLD 1969 SC 14 as under:- "Law is here not confined to statute law alone but is used in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the superior Courts."
9. The appellant has been awarded major penalty of forfeiture of one year approved without stating any reasons. Moreover this enhancement of penalty by the IGP was prejudicial to the appellant. The enhancement of the penalty from minor to major one, without prior information to accused, without issuance of show-cause notice, without affording him opportunity of personal hearing is a violation of law as envisaged under section 16 and 17 of the PEEDA Act, 2006 which is reproduced as follows:--- ' Section 16. Departmental appeal and review (1)
(2)
(a)
(b)
(c) Modify the order and reduce or enhance the penalty or ' Provided that where the appellate or review authority proposes to enhance the penalty, it shall by an order in writing:
(i) inform the accused of the action proposed to be taken against him and the grounds of such action; and
(ii) give him a reasonable opportunity to show cause against the action and afford him an opportunity of personal hearing either itself or through a hearing officer; provided that the hearing officer shall only be appointed where the appellate or the review authority is of the rank of Secretary to the Government of the Punjab or above.
' Section 17 Revision
(1) The Chief Minister, Chief Secretary or the Administrative Secretary or any other appellate authority may call for the record of any or imposition of a penalty, passed by the competent authority or the order of the appellate authority, as the case may be for the purpose of satisfying himself as to the correctness, legality or propriety of such proceedings or order.
(2) On examining the record of the case, such authority may:---
(i) uphold the orders of the competent authority or the appellate authority, as the case may be; or
(ii) order the competent authority to hold de novo inquiry; or
(iii) impose or enhance a penalty or penalties: ' Provided that no order prejudicial to the accused shall be passed under this section unless the accused has been given a reasonable opportunity showing cause against the proposed action and an opportunity of personal hearing.
10. In view of the above legal position the respondent I.G. Punjab could have enhanced the penalty but subject to fulfilment of conditions enumerated in proviso clauses of sections 16 & 17. I am of the considered view that legislature has purposely restricted the powers of reviewing as well as revision authority to enhance the punishment so as to provide the safeguard the rights of the accused simply for reasons that the stage of revision or review is final remedy and forum hereafter the accused has no door to knock at in the department. Here in case in hand the respondent has expanded his restricted powers. What was required under the law in revision is that the appellant should have been given a reasonable opportunity to show cause against the action proposed opportunity of personal hearing. It is evident from the content of the impugned order that such opportunities were not provided to the appellant.
11. In the light of the above discussion, the impugned order was found not sustainable in law and being guided by the order dated 24.5.2011 of the honourable Supreme Court of Pakistan passed in CPs No. 1898, 1899 & 1900-L/2010 the application under section 5 of Limitation Act is accepted and delay in filing of the appeal before this Tribunal is condoned for the reasons mentioned above.
12. In view of above the discussion, the impugned order dated 12.2.2011 passed by the revision authority (Respondent) is set aside and the matter is sent back to respondent I.G. Punjab with the direction to decide the review/revision petition of the appellant afresh on merits within one month from the date of receiving of this order. The revision petition of the appellant shall be deemed pending and alive before the IGP for determination of the plea of the appellant. The office is directed to transmit the copy of this order to respondent, without fail, accordingly. File be consigned to record room after due completion.